OCCUPATIONAL UNITED STATES OF AMERICA

SAFETY AND HEALTH REVIEW One Lafayette Centre

1120 20th Street, N.W. - 9th Floor Washington, DC 2003&3419

SECRETARY OF LABOR Complainant,

v.

PRO-DRIVE, INC. Respondent.

OSHRC DOCKET NO. 92-2532

NOTICE OF DOCKETING OF ADMINISTRATIVE LAW JUDGE’S DECISION

The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on April 13, 1995. The decision of the Judge will become a final order of the Commission on May 15, 1995 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such May 4, 19 B

etition should be received by the Executive Secretary on or before 5 in order to permit sufficient time for its review. See

Commission Rule 91, 29 C.F.R. 2200.91.

All further pleadings or communications regarding this case shall be addressed to:

Executive Secretary Occupational Safety and Health Review Commission

1120 20th St. N.W., Suite 980 Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq. Counsel for Regional Trial Litigation Office of the Solicitor, U.S. DOL Room S4004 . 200 Constitution Avenue, N.W. Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.

FOR THE COMMISSION

Date: April 13, 1995

DOCKET NO. 92-2532

NOTICE IS GIVEN TO THE FOLLOWING:

John H. Secaras, Esq. Re ‘onal Solicitor O&e of the Solicitor U.S. DOL 230 South Dearborn &. Chicago, IL 60604

iZ!it%ikefffES#*K Seigler, Ltd. 434 Pearl Street Ottawa, IL 61350

Sidney J. Goldstein Administrative Law Jud e Occupational Safety an f Health

Review Commission Room 250 1244 North S eer Boulevard Denver, CO 0204 3584 tY

00103199451:05

UNmED SIxTEa OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVtEW COMMISSION

1311 N. Spew Boulevad . Room 250 .-

Denvw, Colwado 802044582

SECRETARY OF LABOR,

Complainant,

v.

PRO-DlS&, INC.,

Respondent.

I I I I I I 6SHRC DOCKET .

I NO. 92-2532 - .

I I I I

APPEARANCES:

For the Complainant:

Lisa R Williams, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, IL

Darrell K Seigler, Esq., Ottawa, IL .

. DECISION AND ORDER

Goldsteti, Judge:

This is an action by the Secretary of Labor against Pro-Dive, Inc. to enforce a citation

issued by the Occupational Safety & Health Administration for the alleged violation of five

safety regulations relating to commercial diving adopted under the Occupational Safety &

Health Act of 1970. The controversy arose after an industrial hygienist of the

Administration inspected a work place of the Respondent, concluded that it was in violation

of the regulations and recommended that the citation be issued. The Respondent disagreed

. with this determination and filed a notice of contest. After a complaint and answer were

filed with this Commission, a hearing was held in Chicago, Illinois.

Preliminary facts disclose that the Respondent is engaged in the commercial diving

business and contracted with Commofiwealth Edison Company to seal an underwater valve

at its plant in LaSalle County, Illinois. To reach the repair site, the diver was to descend

approximately sixty feet, move laterally about twenty feet and then ascend about twenty feet

to reach the valve. The dive team consisted of Randy Jacobs, president of the Respondent

who acted as dive supervisor and standby diver; Terzy Navarro, the diver; and Mark Parisot,

the dive tender.

After the repair job was completed, it appeared that Mr. Navarro, the diver, was in

distress. The team attempted to pull Mr. Navarro to the surface by the line attached to him.

However, there was an apparent snag, and Mr. Jacobs immediately went to Mr. Navasro’s

rescue. The diver was lifted to the surface where emergency treatment was administered

to no avail. Mr. Navarro passed on in a hospital on April 18, 1992. According to a

pathology and coroner report, the cause of death was asphyxia - malfunctioning diving

equipment.

Citation No. 1, Item 1 29 CFR 1910.410&)(3]

Item 1 of the citation charged that:

The employer permitted a dive team member to dive or be othetise exposed to hyperbaric conditions during a temporary physical impairment or condition which was known to the employer and was likely to affect adversely the safety or health of a dive team member:

Commonwealth Edison, LaSalle County Station - Dive team members had not had proper nourishment or rest prior to the dive.

in violation of the regulation which provides:

(3) The employer shall not permit a dive team member to dive or be otherwise exposed to hyperbaric conditions for the duration of any temporary physical impairment or condition which is known to the employer and is likely to affect adversely the safety or health of a dive team member.

2

The evidence in this connection is to the effect that the dive team arrived at the work

site about 1O:OO p.m. on April 16,1992, but did not commence operations until about lo:45

a.m. the following day. Messrs. Jacobs and Parisot testified that they did not know what, if

anything, Mr. Navarro ate prior to the dive, but they saw him drink coffee. There was a

vending machine on the premises available to anyone in the group. No one on the team

noted that Mr. Navarro was hungry or weakened from lack of food. The pathologist found

no food in his stomach and was, therefore, unable to state when Mr. Navarro consumed his

last meal.

So far as sufficient rest prior to the dive is concerned, there is nothing in the record

to establish that Mr. Navarro was unusually tired at the time of the dive. He made no

complaint to this effect; indeed, he remarked that he felt fine at the time he commenced his

descent.

Since Mr. Navarro’s fellow employees and apparent only witnesses to his physical

condition at the time of the dive noted no impairment due to lack of food or rest, I conclude

that the Complainant failed to establish that Mr. Navarro did not have proper nourishment

or rest prior to the dive. This item of the citation is vacated.

Citation No. 1. Item 2 - 29 CFR 1910.421(d)(3]

Item 2 of the citation alleges that:

Planning of a diving operation did not include an assessment of the safety and health aspects of the breathing gas supply:

Commonwealth Edison, LaSalle County Station - The employer did not determine if the air supply to the diver would be adequate for the proposed dive.

in violation of the regulation which appears at 29 CFR 1910.421(d)(3) which provides:

(d) Planning and assessment. Planning of a diving operation shall include an assessment of the safety and health aspects of the following:

(3) Breathing gas supply (including reserves).

The record discloses that on April 22, 1992, Mr. John Maronic, the Administration’s

3

industrial hygienist, commenced an investigation of the accident. He intetiewed Mr. Jacobs

and was told Mr. Navarro died because of a buildup of carbon dioxide in his diving helmet.

Mr. Maronic also spoke with Mr. Dave Clark of Scott Diving who informed him that there

were concerns about the air flow to the helmet due to a plugged diffuser.

To assist in the investigation, the Agency contacted Lt. Commander Allan Harker of

the U.S. Coast Guard, a seventeen year veteran of that service and a highly experienced

diver and investigator of marine accidents. Two months after the mishap, Lt. Commander

Harker visited the accident scene and reenacted on videotape the events of the fatal day in

the presence of IMr. Jacobs and his attorney, Mr. Maronic, representatives of Commonwealth

Edison Company and the manufacturer of the Desco helmet, and Mr. Navarro’s brother.

Lt. Commander Harker duplicated the work set up as closely as possible to the actual events

of April 17, 1992. With Mr. Jacobs’ guidance, Lt. Commander Harker disassembled the

helmet and explained to the observers what he was doing and what he found. No one *

present objected to his procedures, theories, and interpretations. In his written report, he

stated that the apparent ca,use of the tragedy was insufficient volume of air supplied to the

decedent at the time of the casualty, most likely resulting in an excessive amount of carbon

dioxide. There was no doubt that the air pressure was below the minimum of 125 psi.

The Respondent retained Mr. Robert Wass to do a similar study. Mr. Wass is

president of Island Divers and a teacher of sport through commercial diving. He is also an

electrician by trade and was employed as a foreman in this occupation. Mr. Wass had

extensive experience in the investigation of diving fatalities, but did not participate in any

fatality due to a Desco helmet or elevation of carbon dioxide. He also tried to duplicate the

events of the diving accident. In his report, Mr. Wass disagreed with Lt. Commander

Harker’s opinion and concluded that the Respondent did not violate the regulation relating

to the ventilation rate. Mr. Wass also faulted the Commander’s methodology and procedure.

Based upon his study, Mr. Wass concluded that the diver was supplied with air pressure

between 125 and 150 psi, an amount more than sufficient for the dive.

In this connection, Mr. Jacobs testified that Mr. Navarro was highly experienced in

his field and well acquainted with the Desco helmet, although this equipment had not

previously been used in dives of sixty feet. Mr. Jacobs made a visual inspection of the

4

equipment and relied on his experience that the air flow was normal, but he did not know

the actual air flow or cubic feet per minute supplied to the diver. Mr. Jacobs believed the

air pressure was between 125 and 150 psi and acknowledged that 100 psi would be

insufficient. The company’s diving systems standard operating procedures called for air

pressure to be between 125 and 150 psi.

In its brie& the Respondent criticizes Lt. Commander Harker’s conclusion regarding

the amount of air pressure supplied to N[r. Navarro, and requests that the Court look closely

at Exhibits R-5, R-6 and R-7 as confirmation that, on the day of Mr. Navarro’s death, the

pressure relief valve was set at 200 psi and had a working pressure of 170 psi. I looked at

these exhibits which are dated May 11 and May 12,1994, approximately two years after the

accident and find nothing to indicate the exact psi on April 17, 1992. On the other hand,

logs kept by Commonwealth Edison Company disclose that on the fatal date the air pressure

ranged from 109 to 111 psi, amounts considered below the minimum to sustain Mr. Navarro

at the sixty foot depth.

Inasmuch as there was insufficient air pressure supplied to pvlr. Nav;irro on the

accident date, the Respondent was in violation of this regulation, and this item of the

citation is, therefore, affirmed.

Item 3 of the citation stated that:

Gauges indicating diver depth, which can be read at the dive location, were not used for all dives:

Commonwealth Edison, LaSalle County Station - a depth gauge was not used for this dive.

in violation of the regulation found at 29 CFR 1910.430(g)(l) providing:

(g) Gauges and tiineke eping devkes. (1) Gauges indicating diver depth which can be read at the dive location shall be used for all dives except SCUBA

The evidence is undisputed that the Respondent had a pneumofathometer available

at the job site, but decided not to use this gauge during the dive in issue. The Respondent

urges that on hand at the dive was the umbilical hose which was marked with increments of

5

distance, and that the marking satisfied the regulation. A Fathometer is used as a sonic

depth finder. Inasmuch as the diver was required to move laterally as well as vertically, the

hose would not be as effective in measuring depth as the sonic depth finder. A gauge is

generally considered to be an instrument, not a hose.

Respondent’s Exhibit No. R-1 is entitled “Operations Safety Procedure Manual.” In

its Appendix IV, II headed “Diving”, paragraph 6 provides “A pneumofathometer or equally

accurate method will be provided for measuring depths or dives * * *.” In this case, it has

not been demonstrated that the umbilical cord measurement would be as accurate as a

gauge, especially in view of the fact that the diver was required to move lateral&. Thus, the

Respondent was in violation of this regulation, and this item of the citation is affirmed.

Citation No. 1 - Item 4a - 29 CFR 1910.430(h@J Citation No. 1 - Item 4b - 29 CFR 1910.425kM3)

Items 4A and 4b are related and read as follows:

The alleged violations below have been grouped because they involve similar or related hazards that may increase the potential for illness. 4a Surface-supplied air masks and helmets did not have a minimum ventilation rate capable of 4.5 a&n at any depth at which they are operated:

. Commonwealth Edison, LaSalle County Station - The dive helmet did not deliver 4.5 acfin of air to the diver.

- 4b Surface-supplied air diving operations did not have a primary breathing gas supply sufficient to support divers for the duration of the planned dive including decompression:

Commonwealth Edison, LaSaIle County Station - The primary breathing gas supply was not sufficient to support the diver for the planned dive.

in violation of the regulations found at 29 CFR 1910.430(h)(2) and at 29 CFR 1910.425(c)(3)

copied below:

(2) Surface-supplied air masks and helmets shall have a minimum ventilation rate capability of 4.5 acfin at any depth at which they are operated or the capability of maintaining the diver’s inspired carbon dioxide partial pressure below 0.02 ATA when the diver is producing carbon dioxide at the rate of 1.6 standard liters per minute.

(3) Each diving operation shall have a primary breathing gas supply sufficient to support divers for the duration of the planned dive including decompression.

These two regulations concern surface-supplied air masks and helmets and the

primary breathing gas supply. Again, there is a conflict between Lt. Commander Harker’s

studies and Mr. Wass’ conclusions. These reports have been discussed previously. As a

result of his investigation, Lt. Commander Harker concluded that there was insufficient

amount of surface supplied air to Mr. Navarro, well below the required 4.5 a&n, resulting

in a build up of carbon dioxide beyond the demands of the regulation.

Lt. Commander Harker explained that the regulation has two alternatives. Either

there must be a 4.5 a&n ventilation rate which requires that amount of air going into the

helmet or the carbon dioxide rate would be no more than .002 or two tenths of one percent.

In the latter case, there could be no guesswork. The carbon dioxide must be measured.

This expert was of the opinion that neither alternative of the regulation was satisfied. On

the other hand, Mr. Wass had a contrary view and was of the opinion that the Respondent

complied with the regulations.

With this diversity of opinion, I am placing more reliance upon the testimony and

conclusions of Lt. Commander Harker because tests a few hours after the accident disclosed

deficient air quanti~, because Lt. Commander Harker conducted his tests approximately two

months after the tragedy and set up the equipment, including the black box, as Mr. Jacobs

informed him were in place at the time of the mishap; because Lt. Commander Harker

conducted his tests witnessed by Mr. Jacobs and his attorney, the industrial hygienist,

representatives of Commonwealth Edison Company and the manufacturer of the Desco

helmet, and Mr. Navarro’s brother; because the demonstrations, explanations and comments

were recorded on videotape with no objection to the procedures; because Mr. Wass

conducted his investigation over a year after the accident without observers; because the

7

deceased was an experienced diver and well acquainted with the Desco h&net; because

there is no proof that Mr. Navarro varied his work habits on this particular dive; because

there is nothing in the record to indicate Mr. Navarro violated safety regulations or that his

death was caused by his own misconduct or disregard of safety procedures as alleged by the

Respondent in its brief.

I, therefore, find that the Respondent was in violation of the regulations recorded in

Citation No. 1, Items 4a and 4b.

The parties made little, if any, reference to the recommended penalties in the

citation, and they, therefore, will not be disturbed.

In sum, Citation No. 1, Item 1 is vacated. The remainder of the citation is affirmed.

Dated: April 7, 1995